An Unfettered Press

Constitutional Protection

By Robert S. Peck


The early teenage years are often a difficult time for many American youngsters. They hold passionate opinions on issues both large and small, but are still considered too young to be taken seriously.

Mary Beth Tinker was a 13-year-old student in Des Moines, Iowa, in 1965. She had heard Senator Robert F. Kennedy suggest that Americans wear black armbands to protest the Vietnam war and in support of a proposed Christmas truce. Mary Beth and a group of friends who attended different schools in the city decided to wear armbands to school later that week.

Mary Beth was aware that she was risking suspension from school. The school board, two days earlier, had voted to suspend students wearing armbands as a "disruptive influence." And Mary Beth's algebra teacher had warned his students that he would expel any student who came to class with an armband.

On December 16, 1965, a determined Mary Beth and several students at other schools wore armbands. When she entered her afternoon algebra class, Mary Beth was sent to the principal's office and was promptly suspended.

To challenge the policy, Mary Beth and other students brought a lawsuit, claiming that the suspensions violated the First Amendment to the U.S. Constitution, which guarantees "freedom of speech." The students lost at the trial court level. The judge ruled that the armband policy was reasonable, designed to prevent disruptions in the classroom by students who disagreed with the stand of Mary Beth and her friends.

The issue went before the United States Supreme Court three years after the students had been suspended. There, the students won.

The Supreme Court noted, in its opinion Tinker v. Des Moines School District, that neither "students nor teachers shed their constitutional rights at the schoolhouse gate." Still, the Supreme Court declared that these rights must be applied carefully "in light of the special characteristics of the school environment."

In upholding the students' First Amendment rights, the Court found that school officials "sought to punish [the students] for a silent, passive, expression of opinion, unaccompanied by any disorder or disturbance. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any words spoken, in class, in the lunchroom, or on the campus, that deviate from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, [and] our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society."

The Court further stated: "In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved....Students are entitled to freedom of expression of their views."

Incredible as it may seem, this small controversy, generated by five students suspended for wearing armbands, was of such significance that the nation's highest court found it necessary to examine the issue and settle it by reference to the U.S. Constitution, the supreme law of the land. In their battle with school officials, these young students were guaranteed the same free expression rights that the New York Times and the Washington Post, two leading American newspapers, had available when the federal government sought to prevent publication of a classified study about U.S. involvement in Vietnam that came to be known as the "Pentagon papers."

In 1971, the newspapers had received copies of the study from a former government employee. On June 13 of that year, the New York Times began publishing articles based on the study. When the government learned of this, the Department of Justice went to court asking for an order to prevent publication, which was granted.

The government did not accuse the newspapers of preparing to reveal military secrets. Instead, it asserted that the government should be the sole judge of national security needs and should be granted appropriate court orders to enforce that view.

The newspapers claimed that the constitutional guarantee of freedom of the press meant that they could not be censored. They also argued that the government was merely trying to prevent antiwar activists from benefitting from information in the documents that was more embarrassing than militarily sensitive.

On June 30, the Supreme Court ruled in favor of the newspapers in New York Times v. United States, and the documents were subsequently published. The Court said that it is not enough for the president to say national security would be jeopardized by publication. The Constitution, the Court held, has a "heavy presumption" against interference with press freedom. While it may be possible for the government to convince the Court that dire consequences would result from publication of classified documents by newspapers, the government had failed to prove that result in this instance.

The First Amendment's protection of freedom of expression, validated in the Tinker and New York Times cases, enables the American people to engage in an uninhibited form of debate. The words of the First Amendment are deceptively simple: "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Fourteenth Amendment, added to the Constitution in 1868, has been interpreted to apply that protection of freedom of expression to every governmental body, from Congress to local government boards.

This right to speak out is a cherished one, perhaps more than any other right. Americans are not hesitant to criticize public officials as important as the president and as commonplace as the garbage collector. They study and comment on every conceivable subject without fear of reprisal from the government.

Former Supreme Court Justice William Brennan described the rights of free speech and a free press contained within the First Amendment as embodying "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." The Constitution accepts criticism of high government officials because, as the late Justice Hugo Black put it, no "country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials."

The American commitment to freedom of expression can be traced to colonial times, before the United States won its independence and before it wrote its constitution. In 1735, New York publisher John Peter Zenger was tried for "publishing a false, scandalous, and seditious Libel, in which...the King's immediate representative here is greatly and unjustly scandalized." What Zenger had done was publish attacks on the Royal Governor [of the colonies] accusing him of corruption and incompetence.

Zenger was found guilty under the law of libel at the time, but his lawyer, Andrew Hamilton, successfully appealed to the jury to recognize the truth of Zenger's accusations and strike a blow for those who speak or write the truth. "Men who injure and oppress the People under their Administration provoke them to cry out and complain," Hamilton told the jury, "and then make that very Complaint the Foundation for new Oppressions and Prosecutions."

Hamilton asked the jury to put aside the charges against Zenger and instead judge the larger issue before them: "The Question before the Court and you, Gentlemen of the Jury, is not of small nor private Concern, it is not the Cause of a poor Printer, nor of New York alone, which you are now trying: No!.... It is the best Cause. It is the Cause of Liberty."

Hamilton's successful defense of Zenger became the foundation for an American dedication to a free and freewheeling press that continues to this day. As Supreme Court Justice Oliver Wendell Holmes, Jr., wrote in 1918: "The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market....That, at any rate, is the theory of our Constitution."

By expressing one's opinions, individuals are free to use reason and logic to win supporters. The expressions may sometimes be unreasonable and illogical, but it is not, the Constitution says, the responsibility of government to make that determination. The expressions must be permitted so people may judge the truth.

All American politicians, including such revered figures as founders -- and later presidents -- George Washington and Thomas Jefferson, have felt the sting of the press. In the U.S. constitutional system, the press occupies special ground, calling upon government officials to account for their actions and publicizing their failures so that voters may better judge them. Despite the ill treatment he received from the press of the 18th and early 19th centuries, Jefferson had no doubt of its importance. "Were it left to me to decide whether we should have a government without newspapers or newspapers without a government," he wrote in 1802, "I should not hesitate a moment to prefer the latter."

A free press, as guaranteed in the First Amendment, plays a watchdog function in a democratic society: bringing people the information they need to exercise independent judgment in electing public officials who favor policies the people support. James Madison, who is regarded as the "Father of the U.S. Constitution" and was the fourth president of the United States, wrote: "A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both." A free press is thus an essential part of a democratic society; it enables the people to make informed choices.

The heavy presumption against censorship, which the Supreme Court acted upon in the Pentagon papers case, protects more than newspapers. When the Bill of Rights (comprising the first 10 amendments to the Constitution) was ratified, no one could anticipate the diversity of 20th-century communications. Radio, television, and computerized communications were beyond even the most vivid imaginations in 1791, when the First Amendment was added to the Constitution. Still, the concept of a free press has been applied to all these forms of communication. Broadcasters have First Amendment rights but, because the frequency spectrum is limited and people do not have equal access to the broadcast medium, their right of free expression is not identical to that of published or spoken communication. Broadcasters are considered public trustees of the airwaves and must serve the people -- for example, by carrying a certain amount of programming devoted to news and public issues.

Freedom of expression also recognizes that citizens can best influence their government's direction when they work together. The drafters of the First Amendment, understanding this, assured people the right to gather peaceably and to submit their grievances to the government for action. The First Amendment right to petition for redress of grievances has its roots in the English legal tradition and the confrontation of the barons at Runnymede, England, who forced King John to subscribe to the Magna Carta in 1215.

These rights of assembly and petition have played important parts in American history. Americans have made use of them to seek the abolition of slavery and the extension of the right to vote to women. In a democracy, public officials ignore the will of the people, as expressed through assemblies and petitions, at their own peril. Elected officials who are unresponsive to the people will find themselves replaced by others.

Freedom of association has also been found to have a constitutional basis within the rubric of free expression. Though this is not explicitly stated, it is considered a necessary part of the goals protected by the First Amendment. If people cannot associate with one another, if they cannot form coalitions or organizations, they cannot unite in common cause to change governmental policies. The freedom of association recognized by the courts allows people to meet together and prevents government from prohibiting participation in an organization, as well as from meddling in the internal affairs of that organization.

Freedom of expression has always been an easy concept to accept in the abstract. Few ever advocate a regular system of censorship. However, when interests clash as they often do, when the message is hateful or insulting or embarrassing, when one person's freedom of expression begins to affect the rights of others, it becomes a most difficult right to adjudicate.

It is these hard cases that tend to make it to the courts, which are expected to render wise decisions about how far expression can be permitted to go. The Constitution's protections and the tradition of liberty enjoyed in the United States have allowed public expressions to be bold and daring. They are powerful enough to protect both the New York Times and a 13-year-old girl in Iowa named Mary Beth Tinker.


Robert S. Peck is staff director of the American Bar Association Commission on Public Understanding About the Law, and an author, editor, and lecturer on constitutional law.


The American Press

The Right To Know

Editing the Washington Post

The Small-Town Newspaper

The Business Side of a Newspaper

Rights and Responsibilities

Libel Law in the United States

Minorities in Journalism

Targeting an Audience

The Electronic Media

The Sweet Sound of Conflict

The Business of Radio Broadcasting

On the Air in Springville

The High-Tech Trib

Electronic Newspapers

The Center for Foreign Journalists

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